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“To Change the Fundamental Law of the State”: Protective Labor Provisions in U.S. Constitutions

  • Emily Zackin (a1)

As the United States industrialized, its state constitutions began to include protections for laborers. In this article, I describe the origins of these constitutional provisions and ask why labor organizations and other reformers pursued their inclusion in state constitutions. I argue that they saw state constitutions as a vehicle to prompt reluctant legislatures to pass protective statutes, to entrench existing protections against future legislatures, to safeguard labor legislation from constitutional challenges in state courts, and to facilitate further union organizing. Labor activism in this arena is particularly interesting in light of the literature on constitutional change, which contends that constitutional development is a tool through which actors attempt to usher courts into political conflicts; in contrast, I will argue that unions turned to constitutional change in large part to exclude courts from policymaking. Further, the union activism on behalf of constitutional change serves as a challenge to the prominent view among many scholars of American political development and law that judicial hostility to worker rights and union organizing discouraged unions from demanding state protection or institutionalizing their demands through law.

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Edward Corwin , “The Constitution as Instrument and as Symbol,” American Political Science Review 30, no. 6 (1936)

Karl Llewellyn , “A Realistic Jurisprudence—the Next Step,” Columbia Law Review 30, no. 4 (1930)

Herbert Wechsler , “Toward Neutral Principles of Constitutional Law,” Harvard Law Review 73 (1959)

J. Mitchell Pickerill , Constitutional Deliberation in Congress: The Impact of Judicial Review in a Separated System, Constitutional Conflicts (Durham, NC: Duke University Press, 2004)

Howard Gillman , “How Political Parties Can Use the Courts to Advance Their Agendas: Federal Courts in the United States, 1875–1891,” The American Political Science Review 96, no. 3 (2002)

Tom Ginsburg , Judicial Review in New Democracies: Constitutional Courts in Asian Cases (Cambridge, UK: Cambridge University Press, 2003)

Amy Bridges , “Managing the Periphery in the Gilded Age: Writing Constitutions for the Western States,” Studies in American Political Development 22, no. 1 (2008)

Victoria Charlotte Hattam , Labor Visions and State Power: The Origins of Business Unionism in the United States, Princeton Studies in American Politics (Princeton, NJ: Princeton University Press, 1993)

Thomas Goebel , “‘A Case of Democratic Contagion’: Direct Democracy in the American West, 1890–1920,” The Pacific Historical Review 66, no. 2 (1997)

Richard Franklin Bensel , The Political Economy of American Industrialization, 1877–1900 (Cambridge, UK; New York: Cambridge University Press, 2000)

James Gray Pope , “Labor's Constitution of Freedom,” Yale Law Journal 106, no. 4 (1997)

Julie Greene , Pure and Simple Politics: The American Federation of Labor and Political Activism, 1881–1917 (Cambridge, UK; New York: Cambridge University Press, 1998)

Ann-Marie E. Szymanski , Pathways to Prohibition: Radicals, Moderates, and Social Movement Outcomes (Durham, NC: Duke University Press, 2003)

Keith L. Bryant Jr., “Labor in Politics: The Oklahoma State Federation of Labor During the Age of Reform,” Labor History 11, no. 3 (1970)

John P. Enyeart , “‘The Exercise of the Intelligent Ballot’: Rocky Mountain Workers, Urban Politics, and Shorter Hours, 1886–1911,” Labor: Studies in Working-Class History of the Americas 1, no. 3 (2004)

Melvin Urofsky , “State Courts and Protective Legislation During the Progressive Era: A Reevaluation,” The Journal of American History 72, no. 1 (1985)

George Groat , “The Eight Hour and Prevailing Rate Movement in New York State,” Political Science Quarterly 21, no. 3 (1906)

Felix Frankfurter and Nathan Greene , “Legislation Affecting Labor Injunctions,” Yale Law Journal 38, no. 7 (1929), 880

Florence Kelley , “The United States Supreme Court and Utah Eight-Hours' Law,” The American Journal of Sociology 4, no. 1 (1898)

Norris Hundley , “Katherine Philips Edson and the Fight for the California Minimum Wage, 1912–1923,” The Pacific Historical Review 29, no. 3 (1960)

Charles Warren , “The Progressiveness of the United States Supreme Court,” Columbia Law Review 13 (1913)

William Draper Lewis , “A New Method of Constitutional Amendment by Popular Vote,” Annals of the American Academy of Political and Social Science 43 (1912)

Reva B. Siegel , “She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family,” Harvard Law Review 115, no. 4 (2002)

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Studies in American Political Development
  • ISSN: 0898-588X
  • EISSN: 1469-8692
  • URL: /core/journals/studies-in-american-political-development
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